Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.John B. LATHEN, M.D., Defendant-Appellant.

No. 89-30119.

United States Court of Appeals, Ninth Circuit.

Submitted May 10, 1991.^* Decided May 14, 1991.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and LEW,^**  District Judge.

MEMORANDUM^*** 

John Lathen appeals his conviction for making a false statement to a government agency and complains of the upward adjustment of his sentence for more than minimal planning and obstruction of justice.

BACKGROUND

Cinda Kerr, a Special Agent for the Department of Labor, saw Dr. Lathen, posing as an injured Postal Worker. She told him that she was not really injured but wanted some time off with pay. He agreed to treat her but told her that it must look legitimate. He scheduled about ten subsequent appointments with her.

She gave his staff authorization forms from the Postal Service to confirm the work-related injury. The staff did not complete them. Instead, the doctor gave her a letter, addressed "To Whom It May Concern", stating that she would be disabled from work for three weeks.

Ton Nguyen, an Injury Compensation Specialist for the Postal Service, testified that Lathen called him six days after Kerr's appointment. Lathen reported to him that a postal worker named McGuire fraudulently reported an injury in the hope of getting some time off. Nguyen kept a record of the call. Dr. Lathen called again two months later and asked Nguyen for written documentation that the first phone call was made immediately after Kerr left his office rather than a week later.

Nguyen testified that he would have considered the "To Whom It May Concern" letter as prima facie medical evidence entitling an employee to full compensation.

At the sentencing hearing, several persons testified that Dr. Lathen had intentionally falsified medical reports in the past.

JURY INSTRUCTION

We review jury instructions for abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1101 (9th Cir. 1989). "We examine whether or not the instructions taken as a whole were misleading or represented a statement inadequate to guide the jury's deliberations." Id.

Lathen objects to one instruction which addressed the extent to which his conduct could have influenced action taken by the agency. He contends that the jury instruction required a conviction if the "To Whom It May Concern" letter could have possibly influenced the Postal Service, even if he demonstrated good faith by reporting the fraud.

"Materiality is an essential element of a conviction for false statements under section 1001." United States v. Oren, 893 F.2d 1057, 1063 (9th Cir. 1990). A statement is material "if it has the propensity to influence agency action; actual influence on agency action is not an element of the crime." United States v. Facchini, 874 F.2d 638, 643 (9th Cir. 1989) (en banc).

The court's instruction fairly and accurately stated the law with reference to materiality. It informed the jury that the letter was material if it could have caused the Postal Service to pay benefits, and that the government did not have to prove actual reliance. The jury was free to factor Dr. Lathen's belated attempt to distance himself from the scheme into its determination of the letter's potential for influencing Postal Service action. There was no abuse or discretion in instructing the jury.

MORE THAN MINIMAL PLANNING

We review de novo the application of the Sentencing Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). We review the court's factual findings for clear error. United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

The base offense level for crimes involving fraud and deceit must be increased by two points if the defendant engaged in more than minimal planning. United States Sentencing Commission, Guidelines Manual, Sec. 2F1.1(2). "More than minimal planning" means more planning than is typical for commission of the offense in a simple form. U.S.S.G. Sec. 1B1.1. Comment. (n. 1(f)). It also exists if significant affirmative steps were taken to conceal the offense. Id.

The court found Lathen engaged in a pattern of fraudulent behavior. Based on evidence at sentencing, it concluded that he had previously certified persons as injured to obtain benefits from insurance companies. At the initial appointment with Kerr, he discussed in some detail how to avoid being caught. Specifically he told Kerr three times not to tell him about her medical history. He scheduled many later appointments and treatment sessions. These findings were not clearly erroneous and are a sufficient foundation to support the court's determination that there was more than minimal planning.

OBSTRUCTION OF JUSTICE

A finding of obstruction of justice is a factual determination reviewed for clear error. United States v. Christman, 894 F.2d 339, 342 (9th Cir. 1990). Section 3C1.1 of the Sentencing Guidelines requires a two-point increase in the offense level if the defendant willfully obstructed, impeded or attempted to obstruct or impede the administration of justice during the investigation, prosecution or sentencing of the offense. U.S.S.G. Sec. 3C1.1.

The court found that the first phone call from Lathen to Nguyen came a week after Kerr's appointment, not immediately thereafter as Lathen insists. The court found that the request for written documentation of the first phone call was an attempt to obtain false evidence. To conclude that this conduct was an obstruction of justice was not clearly erroneous.

The court also believed that Lathen gave false testimony. The doctor argues that it was error not to specify his alleged false statements. The court was not required to make specific findings about the portions of testimony it believed were falsified. See United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.), cert. denied, 111 S. Ct. 394 (1990).

Lathen contends that this case is analogous to United States v. Werlinger, 894 F.2d 1015 (8th Cir. 1990), in which the court reversed sentence adjustments for more than minimal planning and also obstruction of justice because the same evidence was used to support both enhancements. Lathen says that the court erred in double counting when it considered the phone calls for both obstruction of justice and more than minimal planning.